DOC APOLOGIZES, LOSES $3M LAWSUIT WITH APOLOGY LAW?

DOC APOLOGIZES, LOSES $3M LAWSUIT WITH APOLOGY LAW?
The appellate court decision came down about a month ago in Ohio: An Ohio doctor who had apparently apologized for a mistake would still be the loser of a $3M lawsuit, even though Ohio has an apology law on the books. Buckeye State lawyer Stephen Kleinman of the Ohio firm Schottenstein, Zox, and Dunn opined in an on-line column that the ruling was "extremely unfavorable to physicians."

No doubt, this ruling will be thrown in the faces of disclosure advocates as "disclosure is just too risky" and "See, I told you so!"

Hold on! Let's all take a deep breath, and look at the facts of the situation.

First, no doubt naysayers will use this case as their poster child...but just ask the naysayers how many more cases have moved to litigation and ultimately lost because doctors & nurses have said nothing post-event? It's a common theme in med-mal litigation: Nobody said anything to the patient or family, not even sorry! In fact, it's the biggest driver of litigation. How much has deny and defend cost us in terms of med-mal lawsuits as well as continued safety problems? Cleary, we're not going to back to deny and defend......we simply need to smooth out some rough edges in the disclosure movement.

Second, I'm sure there is more to this story that what we are getting from the media...much more. However, for what it's worth, a news article about the case is below, and here is a link for the appellate court's decision: http://www.healthlawyers.org/News/Health%20Lawyers% 20Weekly/Documents/070811/davis_case.pdf . If, for some reason the link does not work on your computer, simply type in Davis v. Wooster Orthopaedic and Sports Medicine, Inc in your favorite search engine. You will get lots of hits to choose from.

In summary, the case involves the death of a 49-year old woman who died following back surgery. On page 8 of the appellate decision, we see that both the woman's husband and daughter testified that the surgeon told them the back surgery went fine but when they rolled her over the blood pressure started to drop and an ultrasound discovered bleeding.

Then, according to the appellate court decision, the husband and daughter testified that the doctor told them that an "artery was nicked" and he (the surgeon) took "full responsibility." The daughter also testified that the surgeon said "he was sorry," but that the "sorry" itself was not brought into evidence by the defense (and plaintiffs weren't allowed to use it). The family subsequently sued and won a $3M judgment, and this is where the story gets very interesting from our perspective.

In his unsuccessful appeal, the physician claimed the Ohio apology law was breached at the trial court. The Ohio law reads "any expression of apology, sympathy, commiseration, condolence, compassion, or general sense of benevolence" cannot be admitted into evidence. According to the appellate court, the physician argued that his statement admitting fault to the husband and daughter should not have been admitted in the trial court, stating that apology as commonly defined includes "expression of fault, admission of error." But, get this, the appellate court ruled that the Ohio General Assembly intended for the word "apology" to only be construed as an expression of sympathy without admission of fault --- which is basically impossible!

Let's be clear: When you "apologize" you are admitting fault! Empathy, on the other hand, is not "apology," even though it typically uses the word "sorry." "I'm sorry this happened" is empathy, whereas, "I'm sorry we cut an artery," is apology. Got it?!

What a mess --- the Ohio law was poorly written, and the court's interpretation is questionable. Is it any wonder that we wrote recently that apology laws are a distraction and we need to move past them! We don't need them, nor should we train our docs and staff on them. We don't need to protect our doctors and nurses when disclosure is done right.....at the minimum disclosure provides great evidence for the defense. Moreover, some of the most successful disclosure programs in the country operate without apology laws, and even those that do have apology laws on their state books don't pay attention to them. What's the secret to their success? Good event management! Teaching their staff to be proactive post-event with empathy and customer service, but PAUSE before admitting anything. Even if the staff believes a mistake was truly made, plenty of time down the road to cross that bridge with the patient and/or family. Hunches in the heat of the moment are often wrong, but once you've admitted fault it's hard to go back over that bridge. Back tracking will look like a cover up, the patient/family will truly start to hate you, and litigation will soon follow.

A critic may counter by saying this case is a perfect example of why we need apology laws. I strongly disagree, because it's nearly impossible to get a "perfect" apology law, and you will get sued a lot while waiting because your docs and nurses aren't communicating. No, we need to shift the focus from politics - where things are out of our control - to training our docs and nurses on Sorry Works where we have complete control!

I also strongly disagree with the statement from Ohio attorney Kleinman that this case and the appellate ruling are some sort of dark day for Ohio docs --- this ruling has no impact on the docs in Ohio (or elsewhere) or the national disclosure movement because apology laws are not important to what we do! Instead, we need good event management because I do agree with a different statement in Mr. Kleinman's article: "Physicians in Ohio must exercise extreme caution regarding making any statements to patients or family members related to a medical error." Yes, absolutely agree 100 percent! We talk about errors, mistakes, fault, etc only after an investigation has proven error....only after a fresh set of eyes, not emotionally invested in the care rendered can make a fair and reasonable judgment. This is the PAUSE! Until then, lots of empathy - "I'm sorry this happened" and lots of customer service. This is good for the doc and institution as well as the patient/family. Because as soon as a patient/family hears words like "error," "malpractice," "fault," "mistake," "negligence," etc...they will never believe otherwise, even if a credible investigation says otherwise, even if they lose their malpractice suit. What a horrible prison to put another person...believing their loved one died from medical errors but the experts or the courts simply didn't believe them. Such people can literally go crazy.

As far as the science of the case (was it malpractice or not?), I'm not in a position to judge, but we do know the doctor ultimately tried to defend the care he rendered.....but, obviously, from his appeal the doctor felt his statement immediately after the surgery - an artery was nicked, take full responsibility - significantly hurt his defense. For me, a better statement following the back surgery would have been, "The back surgery itself went fine, but when she was rolled over the blood pressure dropped and a ultrasound discovered bleeding....I am sorry this happened. And we are going to learn how this happened." And then a credible investigation would have quickly followed, and if malpractice was discovered than the apology - with admission of fault! - would have been offered followed by discussions of fair/just compensation, which hopefully would have saved six+ years of expensive and emotionally draining litigation.

To learn more about good event management and properly communicating with patients and families post-event, contact Sorry Works! at 618- 559-8168 or doug@sorryworks.net. We offer CME-approved presentations that can train your staff on the art of disclosure....we're here to help!

Many legal experts say physicians who apologize for errors in the OR stay out of the courtroom. Tell that to Michael Knapic, MD, the orthopedic surgeon from Ohio who was slapped with a $3.3 million lawsuit after admitting that an accidental slip of his knife during back surgery caused the patient to bleed out.

Barbara Davis, then 49, passed away following a lumbar microdiscectomy performed on July 23, 2004. Her husband, Leroy Davis, sued Dr. Knapic for negligence in performing the procedure, accusing him of severing Mrs. Davis' left common iliac artery and lacerating her iliac vein, and "failing to timely diagnose and treat" the resulting medical condition, according to court records.

During the trial, Mr. Davis and his daughter, Pamela Bickel, testified that Dr. Knapic admitted he nicked an artery and took full responsibility for doing so. Court records show that Ms. Bickel, during her pre-trial deposition, claimed Dr. Knapic said he was "sorry," but that testimony was not submitted as evidence during the trial.

The sides involved in this case agreed that Ohio state law prohibits a healthcare professional's statement of sympathy as evidence in malpractice cases. They differed, however, on whether or not admissions of liability or fault could be admitted.

Dr. Knapic argued that the definition of "apology" implies an expression of fault and admission of error. He believed state law intends to protect the physician-patient relationship following adverse medical events. Mr. Davis, however, believed the law does not exclude a direct admission of fault as evidence.

The trial court agreed. Dr. Knapic and his practice group challenged the verdict, but the Ohio Court of Appeals upheld the lower court's ruling, stating in its decision that intent of the law is "to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, but not admissions of fault."

According to the appeals court, the law keeps the physician-patient relationship intact. It ruled, "A physician may speak with a patient or a patient's family members and express his heartfelt sympathy for their pain following a negative outcome without risk of that expression of sympathy being used against him in court."